Citation Nr: 0409150
Decision Date: 04/08/04 Archive Date: 04/16/04
DOCKET NO. 02-05 072 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
San Diego, California
THE ISSUE
Entitlement to service connection for left cerebrovascular
accident (CVA) and dementia.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant and his spouse
ATTORNEY FOR THE BOARD
M.Cooper, Counsel
INTRODUCTION
The veteran served on active duty from November 1961 to April
1966.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a October 2001 RO decision which
denied service connection for left CVA and dementia secondary
to shrapnel fragment wound with retained metallic fragments
in the scalp.
A hearing was held in July 2003, before the Veterans Law
Judge signing this document. The Veterans Law Judge had been
designated by the Chairman to conduct the hearing pursuant to
38 U.S.C.A. § 7102 (West 2002). A transcript of the hearing
testimony has been associated with the claims file.
FINDINGS OF FACT
1. All relevant available evidence necessary for an
equitable disposition of the appropriate claims addressed by
this decision has been obtained by the RO.
2. The CVA is not the result of a disease or injury in
service, and is not related to, or aggravated by, service-
connected shrapnel fragment wound with retained metallic
fragments in the scalp.
CONCLUSION OF LAW
Residuals of a CVA was not incurred in or aggravated by
service, nor is it shown to be proximately due to, the result
of, or aggravated by service-connected disability. 38
U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.102, 3.159,
3.303, 3.307, 3.309, 3.310(a), 3.326 (2003)
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Veterans Claims Assistance Act of 2000 (VCAA), now
codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106,
5107, 5126 (West 2002) redefines the obligations of VA with
respect to the duty to assist, including to obtain medical
opinions where necessary, and includes an enhanced duty to
notify a claimant as to the information and evidence
necessary to substantiate a claim for VA benefits.
VA has a duty to notify the claimant of the evidence needed
to substantiate his claim, of what evidence he is responsible
for obtaining and of what evidence VA will undertake to
obtain. 38 U.S.C.A. § 5103(a) (West 2002); Quartuccio v.
Principi, 16 Vet. App. 183 (2002).
The United States Court of Appeals for Veteran Claim's
(Court's) decision in Pelegrini v. Principi, 17 Vet. App.
412, 422 (2004) held, in part, that a VCAA notice consistent
with 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1)
inform the claimant about the information and evidence not of
record that is necessary to substantiate the claim; (2)
inform the claimant about the information and evidence that
VA will seek to provide; (3) inform the claimant about the
information and evidence the claimant is expected to provide;
and (4) request or tell the claimant to provide any evidence
in the claimant's possession that pertains to the claim, or
something to the effect that the claimant should "give us
everything you've got pertaining to your claim(s)." This
new "fourth element" of the notice requirement comes from
the language of 38 C.F.R. § 3.159(b)(1). VA's General
Counsel has held that this aspect of Pelegrini constituted
dicta. VAOPGCPREC 1-2004 (2004).
The RO provided this notice in a letter dated in March 2002.
The VCAA notice letter did not explicitly contain the
"fourth element;" however, the letter did tell him to
furnish information with regard to any person having relevant
evidence, and advised him that he could furnish records.
This information should have put him on notice to submit
relevant evidence in his possession.
In Pelegrini, the majority also expressed the view that a
claimant was entitled to VCAA notice prior to initial
adjudication of the claim, but declined to specify a remedy
were adequate notice was not provided prior to initial RO
adjudication. Pelegrini v. Principi, at 420-2.
Althought the VCAA notice was provided after the initial
adjudication, the veteran was not prejudiced.
The veteran did not report the existence of, or submit,
additional evidence in response to the VCAA notice. Even if
he had submitted additional evidence substantiating his
claim, he would have received the same benefit as he would
have received had he submitted the evidence prior to initial
adjudication. The effective date of any award based on such
evidence, would have been fixed in accordance with the claim
that was the subject of the initial adjudication. 38 C.F.R.
§ 3.156(b) (2003) (new and material evidence received prior
to the expiration of the appeal period, or prior to the
appellate decision, if a timely appeal has been filed, will
be considered as having been filed with the claim, which was
pending at the beginning of the appeal period); see also 38
C.F.R. § 3.400(q)(1) (2003) (providing that when new and
material evidence is received within the appeal period, the
effective date will be set as if the prior denial had not
been made).
VA has complied with its obligation to afford the veteran a
contemporaneous examination in connection with his claim.
The claims file contains the results of VA examinations that
were the product of a review of the claims folder and contain
all findings needed to evaluate the claim. VA has also
obtained all relevant treatment records. These actions have
complied with VA's duty to assist the veteran with the
development of his claim. 38 U.S.C.A. § 5103A (West 2002).
I. Factual Background
A review of the veteran's service medical records reflects a
notation of "shrapnel occiput" which was the result of
enemy action. On service separation examination in March
1966, a 1-inch scar in the scalp was noted.
On VA examination in June 1971, the diagnoses included
metallic foreign bodies below the occipital bone. A skull X-
ray study showed a single metallic foreign body in the soft
tissues just below the occipital bone to the right of the
midline.
In a June 1976 RO decision, service connection for residuals
of a shell fragment wound with retained metallic fragments in
the scalp and neck was granted with a 0 percent
(noncompensable) evaluation.
VA and private medical records essentially reflect treatment
for a variety of disorders including hypertension and
retinitis pigmentosa.
Private medical records dated in May 2000 reveal that the
veteran's principal diagnosis was status post left main
coronary artery CVA with right hemiparesis. His secondary
diagnosis was hypertension. It was noted that the veteran
was found in his car aphasic with right hemiparesis with
work-up revealing left main coronary artery cerebrovascular
accident. A carotid study showed only mild stenosis. A
magnetic resonance imaging (MRI) study revealed left main
coronary artery CVA with some mild hemorrhaging at the left
basal ganglia vicinity.
VA medical records dated from March 2000 to October 2000 were
received. A June 2000 record shows that the veteran was seen
following hospitalization for CVA with right-sided weakness
and expressive aphasia. The diagnostic assessment included
status post CVA while temporarily off of aspirin therapy,
unsure if ischemic versus hemorrhagic.
A December 2000 private MRI study reflects an impression of
old left middle cerebral artery territory infarction;
metallic artifact obscuring portions of the brain, and no
acute disease noted.
On VA brain examination in January 2001, the history of
shrapnel wound injury to the held with retained metal
fragments in the occipital area was noted. It was also noted
that the veteran had a history of hypertension and had
suffered a stroke in May 2000. The veteran indicated that he
was not told whether or not there was a connection between
his shrapnel injury and the CVA. He denied any symptoms of
paralysis or weakness at the time of the shrapnel injury.
The diagnoses included left hemisphere CVA, and scalp wound
with shrapnel wound. The examiner commented that he could
not think of any significant relationship between these two
diagnoses, and therefore, concluded that it was more probable
than not that they were not related. The examiner concluded
that he could not establish any relationship and it would be
unlikely that there would be a relationship.
On VA scar examination in May 2001, the veteran reported the
history of shrapnel wound to the posterior scalp while in
Vietnam. It was noted that he did not have the fragment
surgically removed nor did he notice any fragments being
extruded through the skin spontaneously since that time. The
diagnosis was shrapnel wound with shrapnel fragment under the
surface of the skin with no discernable scar in the posterior
scalp.
II. Analysis
Service connection means that the facts, shown by evidence,
establish that a particular injury or disease resulting in
disability was incurred in the line of duty in the active
military service or, if preexisting such service, was
aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.
Additionally, service connection will be granted for a
disability that is proximately due to or the result of a
service connected disease or injury. 38 C.F.R. § 3.310.
Secondary service connection can also be granted for
additional disability that results from aggravation of a non-
service connected disease or disability by a service-
connected disease or disability. See Allen v. Brown, 7 Vet.
App. 439 (1995).
It has not been contended, nor is there evidence that the
veteran incurred the CVA on a direct basis during active
service. Rather he contends that the CVA developed secondary
to the service-connected residuals of a shrapnel fragment
wound with retained metallic fragments in the scalp.
There is no competent evidence linking the CVA to the service
connected shrapnel wound. The only competent evidence on
this question consists of the opinion of the VA examiner in
January 2000. That examiner found that it was unlikely that
the CVA and shrapnel wound were related. This opinion was
based on review of the evidence and thus has significant
probative value. Since there is no competent evidence
against this opinion, the Board finds that the preponderance
of the evidence is against the veteran's claim of service
connection for CVA, on a direct or secondary basis.
The Board has considered the veteran's testimony and
contentions that the CVA was the result of the shrapnel
wound. However, as a lay person, he is not competent to
express an opinion as to medical causation. Espiritu v.
Derwinski, 2 Vet. App. 492 (1992).
The Board has considered the Court's holding in Allen v.
Brown, 7 Vet. App. 439 (1995). However, in this case, there
is no competent evidence showing that his CVA is related to
the residuals of a shrapnel fragment wound with retained
metallic fragments in the scalp, therefore, there is no
showing that there is additional impairment caused by the
service-connected disability.
Since the preponderance of the evidence is against the
veteran's claim of service connection for CVA, the claim is
denied.
ORDER
Entitlement to service connection for CVA and dementia is
denied.
____________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
YOUR RIGHTS TO APPEAL OUR DECISION
The attached decision by the Board of Veterans' Appeals (BVA or Board) is
the final decision for all issues addressed in the "Order" section of the
decision. The Board may also choose to remand an issue or issues to the
local VA office for additional development. If the Board did this in your
case, then a "Remand" section follows the "Order." However, you cannot
appeal an issue remanded to the local VA office because a remand is not a
final decision. The advice below on how to appeal a claim applies only to
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do
anything. We will return your file to your local VA office to implement
the BVA's decision. However, if you are not satisfied with the Board's
decision on any or all of the issues allowed, denied, or dismissed, you
have the following options, which are listed in no particular order of
importance:
? Appeal to the United States Court of Appeals for Veterans Claims
(Court)
? File with the Board a motion for reconsideration of this decision
? File with the Board a motion to vacate this decision
? File with the Board a motion for revision of this decision based on
clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to also:
? Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a motion to
vacate, or a motion for revision based on clear and unmistakable error with
the Board, or a claim to reopen at the local VA office. None of these
things is mutually exclusive - you can do all five things at the same time
if you wish. However, if you file a Notice of Appeal with the Court and a
motion with the Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the Court
before you file a motion with the BVA, the BVA will not be able to consider
your motion without the Court's permission.
How long do I have to start my appeal to the Court? You have 120 days from
the date this decision was mailed to you (as shown on the first page of
this decision) to file a Notice of Appeal with the United States Court of
Appeals for Veterans Claims. If you also want to file a motion for
reconsideration or a motion to vacate, you will still have time to appeal
to the Court. As long as you file your motion(s) with the Board within 120
days of the date this decision was mailed to you, you will then have
another 120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court. You should
know that even if you have a representative, as discussed below, it is your
responsibility to make sure that your appeal to Court is filed on time.
How do I appeal to the United States Court of Appeals for Veterans Claims?
Send your Notice of Appeal to the Court at:
Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950
You can get information about the Notice of Appeal, the procedure for
filing a Notice of Appeal, the filing fee (or a motion to waive the filing
fee if payment would cause financial hardship), and other matters covered
by the Court's rules directly from the Court. You can also get this
information from the Court's web site on the Internet at
www.vetapp.uscourts.gov, and you can download forms directly from that
website. The Court's facsimile number is (202) 501-5848.
To ensure full protection of your right of appeal to the Court, you must
file your Notice of Appeal with the Court, not with the Board, or any other
VA office.
How do I file a motion for reconsideration? You can file a motion asking
the BVA to reconsider any part of this decision by writing a letter to the
BVA stating why you believe that the BVA committed an obvious error of fact
or law in this decision, or stating that new and material military service
records have been discovered that apply to your appeal. If the BVA has
decided more than one issue, be sure to tell us which issue(s) you want
reconsidered. Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
VA
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CONTINUED
Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you also plan
to appeal this decision to the Court, you must file your motion within 120
days from the date of this decision.
How do I file a motion to vacate? You can file a motion asking the BVA to
vacate any part of this decision by writing a letter to the BVA stating why
you believe you were denied due process of law during your appeal. For
example, you were denied your right to representation through action or
inaction by VA personnel, you were not provided a Statement of the Case or
Supplemental Statement of the Case, or you did not get a personal hearing
that you requested. You can also file a motion to vacate any part of this
decision on the basis that the Board allowed benefits based on false or
fraudulent evidence. Send this motion to the address above for the
Director, Management and Administration, at the Board. Remember, the Board
places no time limit on filing a motion to vacate, and you can do this at
any time. However, if you also plan to appeal this decision to the Court,
you must file your motion within 120 days from the date of this decision.
How do I file a motion to revise the Board's decision on the basis of clear
and unmistakable error? You can file a motion asking that the Board revise
this decision if you believe that the decision is based on "clear and
unmistakable error" (CUE). Send this motion to the address above for the
Director, Management and Administration, at the Board. You should be
careful when preparing such a motion because it must meet specific
requirements, and the Board will not review a final decision on this basis
more than once. You should carefully review the Board's Rules of Practice
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on filing a
CUE review motion, and you can do this at any time.
How do I reopen my claim? You can ask your local VA office to reopen your
claim by simply sending them a statement indicating that you want to reopen
your claim. However, to be successful in reopening your claim, you must
submit new and material evidence to that office. See 38 C.F.R. 3.156(a).
Can someone represent me in my appeal? Yes. You can always represent
yourself in any claim before VA, including the BVA, but you can also
appoint someone to represent you. An accredited representative of a
recognized service organization may represent you free of charge. VA
approves these organizations to help veterans, service members, and
dependents prepare their claims and present them to VA. An accredited
representative works for the service organization and knows how to prepare
and present claims. You can find a listing of these organizations on the
Internet at: www.va.gov/vso. You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is not a
lawyer, but is specially accredited by VA.)
If you want someone to represent you before the Court, rather than before
VA, then you can get information on how to do so by writing directly to the
Court. Upon request, the Court will provide you with a state-by-state
listing of persons admitted to practice before the Court who have indicated
their availability to represent appellants. This information is also
provided on the Court's website at www.vetapp.uscourts.gov.
Do I have to pay an attorney or agent to represent me? Except for a claim
involving a home or small business VA loan under Chapter 37 of title 38,
United States Code, attorneys or agents cannot charge you a fee or accept
payment for services they provide before the date BVA makes a final
decision on your appeal. If you hire an attorney or accredited agent within
1 year of a final BVA decision, then the attorney or agent is allowed to
charge you a fee for representing you before VA in most situations. An
attorney can also charge you for representing you before the Court. VA
cannot pay fees of attorneys or agents.
Fee for VA home and small business loan cases: An attorney or agent may
charge you a reasonable fee for services involving a VA home loan or small
business loan. For more information, read section 5904, title 38, United
States Code.
In all cases, a copy of any fee agreement between you and an attorney or
accredited agent must be sent to:
Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion asking
the Board to do so. Send such a motion to the address above for the Office
of the Senior Deputy Vice Chairman at the Board.
VA
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